Director of Public Prosecutions v El Azar

[2020] VCC 932

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-19-00175
Indictment No: J10398288

DIRECTOR OF PUBLIC PROSECUTIONS

v

ELIA GHASSAN EL AZAR

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JUDGE:	HIS HONOUR JUDGE TINNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	24 June 2020
DATE OF SENTENCE:	26 June 2020
CASE MAY BE CITED AS:	DPP v El Azar
MEDIUM NEUTRAL CITATION:	[2020] VCC 932

REASONS FOR SENTENCE
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Subject:  Kidnapping, theft x 2, ICI. 39 years old at time of offence in 2015. 44 years old as at sentence. Lengthy criminal history including prior prison sentence for false imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr R. Barry	Office of Public Prosecutions
For the Accused	Mr P. Dunn QC (Plea) Mr W. Blake (Sentence)	Emma Turnbull Lawyers

HIS HONOUR:

1Elia Ghassan El Azar you have pleaded guilty to one charge of kidnapping, two charges of theft and one charge of intentionally causing injury.  Kidnapping is punishable by a 25 year maximum term of imprisonment.  The other three charges have a 10 year maximum term of imprisonment in each case.

2You were born on 19 February 1976 and so are now 44 years of age.  The offending occurred back in July 2015 at which stage you were 39.  You have a lengthy criminal history which is of relevance to my task.

3Mr Barry appeared on behalf of the Director of Public Prosecutions and opened the case to me on Wednesday of this week.  He relied upon a written summary of opening dated 15 June 2020.  That summary referred to some of the statements within the depositional material.

4Your counsel Mr Dunn told me that it was an agreed written opening and so I marked it as Exhibit A on the plea.

5I will sentence in accordance with that agreed summary so there is no point in my  restating the sentencing facts in these my reasons.

6This was unmistakably serious offending and your counsel did not say otherwise.

7In the briefest of terms, your co-accused James Baker and the 20 year old victim James Kittelty knew each other.  They were the same age.  Baker was still only 20 years old when sentenced by Judge Montgomery in April 2016.  His date of birth was 24 April 1995.

8You were a complete stranger to the victim.  You had no business being anywhere near him.  You and Baker went to Kittelty's Footscray address uninvited in the early hours of the morning of 22 July 2015.  You both entered the house.  Baker was in possession of a crowbar.  Kittelty, a male named Jaycob Grieve and a young woman Jessica Mead were present in the house.

9Baker spoke to Kittelty and asserted that there was a debt owed by Kittelty.  Kittelty disputed that fact.  He claimed that it had been repaid.  None of this had anything to do with you.  Nothing at all.  Nor was there any suggestion that it was a debt in the thousands.  Baker had mentioned the sum of $500.  You were not owed one cent.  Kittelty was prevailed upon by Baker to transfer some money from his bank account.  That took some time.  When he saw that only $400 had been transferred, Baker physically assaulted Kittelty.  You are not charged with that conduct but of course had seen what had happened to the man who ultimately was kidnapped.  Kittelty was monstered by Baker and by you.

10At one point your victim had crawled under his desk.

11You asked him how much his various items of property were worth.  You and Baker ransacked the house taking what you felt like taking from Kittelty but also property belonging to Jaycob Grieve who as I have said, was present in the house.  The stolen property was loaded into the car out the front.

12You then raised the stakes mentioning the sum of $5,000.  It had grown from the $500 sum that Baker had discussed.  You said if that sum of $5,000 was paid, Kittelty would not have to deal with you again.

13The summary sets out what you told your victim about this false debt and what would happen if it was not paid.  It sets out the desperate steps your victim took including ringing and texting his mother.  He texted his mother pleading with her to send $5,000 or he would be killed.

14You had given him a story to tell his mother about a car accident where he was the driver and had caused damage to another car whilst under the influence of drugs.  That was designed to help him get the $5,000 from his mother to avoid the matter being taken further by the other motorist.  That ploy failed and you took the phone off him.  You told him that you had no confidence that he would not go to the police and then forced your victim to come with you and Baker until all the money was obtained.  You were instrumental in this, threatening to shoot him if he did not come with you.  You forced him to take some additional property out to the car.  Baker was driving.  You bound your victim's hands with electrical tape and put a pillowslip over his head.  The car left the scene with the three of you in it and drove some distance.  You all got out and your victim was taken inside your house.  You asked if he could see anything and he said he could not.  You asked for his phone's PIN number.  He supplied it.  The kidnap then continued for a number of hours.  He went to sleep at one point and woke up to find you burning his arm.  That is the conduct the subject of the charge of intentionally causing injury laid against you.  By that stage his arms and legs were bound.  He was further assaulted in the course of this ordeal by Baker punching him in the back of the head and demanding money.  The victim ultimately suggested that you and Baker might be interested in leaving the house to get some drugs from one of his friends.  No doubt he was looking for any way to get out of the house.  You all left the house at around 1.30 pm.  He made some calls and the meeting was arranged.  Initially he was blindfolded as he left the house but the covering was in due course removed.  Ultimately, near the intersection of Victoria Street and Elizbeth Street, your victim seized the moment and escaped from the car.  He had seen a marked police car and ran for assistance.  You and Baker drove off.  Your victim escaped at about
2.10 pm.  By that stage the kidnap had been underway for a very sizeable period.  In excess of 10 hours.

15Your victim sustained a number of injuries described in paragraph 31.  You are responsible only for the burns.

16You were arrested on 30 April 2017.  A DNA sample had been taken from you on a date after the commission date of the offences and provided a match in relation to a sample from some sunglasses worn on the night of this offence I am dealing with.  

17You were released pending summons.  You made a no comment interview on
30 April 2017 as was your right.  You were identified in a photo-folder in September 2017.  There is a complicated procedural history which I will not set out in great detail either now or later.  It is referred to in the agreed opening as well as in the chronology prepared by Mr Dunn.  He took me through that document carefully.  You have been in custody since September 2018, though not all of that time is referrable to this matter and some has been previously declared in relation to other sentences imposed upon you.  You committed a serious offence in August of 2015 which was dealt with by Judge Coish of this court in November 2017.  There were other sentences imposed at later points and some at earlier points but all of them after the offending I am dealing with.

18You were on a suspended sentence at the time that you committed these serious offences.

19So much for my brief summary of the summary.  I sentence in accordance with the full statement.  This was very serious offending by a mature man with relevant past criminal history.

20There is no victim impact statement.  I do not need one to know that this was plainly terrifying offending.  It was designed to be.  Your victim was pleading with his mother and felt that he may be killed.  He will never forget his meeting with you and Baker.  However in the absence of specific impact materials, I am not able to reach any finding as to how the matter has continued to impact upon him.  There is just no evidence on that score.

21Baker was dealt with on 6 April 2016 by Judge Montgomery.  He received a three year community corrections order.  He was 20 at the time of the offending and with no criminal history at all.  He had youth very much on his side and had done a decent period of residential rehabilitation.  The sentencing reasons are provided to me and not surprisingly given your conduct, the Crown asserted to Judge Montgomery that you were the leader in the kidnap offence.  They maintained that stance before me.

In Mitigation

22Mr Dunn appeared and conducted a thorough plea on your behalf on Wednesday of this week.  A written outline dated 22 June 2020 was filed and marked as Exhibit 1.

23Mr Dunn took me to your personal background.  As I said a moment ago, there was also an extensive chronology marked as part of that same exhibit.  He placed before the court the sentencing reasons for your co-accused.  He also filed a report from Mr Crewdson as well as one from Dr Michael King.  In addition, there were a number of drug screens, course results and attendance certificates, as well as letters from people who had dealings with you and had treated or counselled you in the periods you have been in custody.  For instance Peter Wroblewski, Peter McAlpine, Shane Brasier, Bernadette Maxwell and Paul Itter.  There was also a letter from one of your friends from primary school David Soldini and a letter from your mother. Mr Soldini also gave evidence on the plea.

24Mr Dunn relied upon a number of matters in mitigation including the following:

·Your guilty plea;

·The presence of some remorse;

·An increased burden owing to the COVID-19 virus;

·Delay;

·Parity; and

·Totality.

25Your counsel conceded the seriousness of the offending, particularly the kidnap.  He submitted that you had some prospects of rehabilitation.  He conceded that a prison term was warranted but argued that it would be open to deal with you on a combination basis with a further term of imprisonment to serve, providing for your ultimate release onto a suitably conditioned community corrections order.

Prosecution

26Mr Barry who appeared on behalf of the Director of Public Prosecutions challenged the availability of such an outcome.  He had prepared some detailed sentencing submissions which I see no need to repeat in their entirety.  They are part of Exhibit A.  The Crown submitted that the offending was just too serious and was committed by a man with a highly relevant history.  The Crown submitted that this was a serious example of kidnap.  It occurred over several hours beginning in the early morning.  The context was of your victim having previously been badly assaulted by Baker.  The kidnap took place after that assault with threats and demands for money and with a blindfold and binding of limbs.  He was driven to your home and there the kidnapping continued for a number of hours.  The Crown asserted that you were instrumental in the kidnap.  You were the person who hatched the idea to kidnap.  You demanded the increased sum of $5,000.  The victim was taken to your home.  You had a highly relevant history before the courts demonstrating a preparedness, the Crown said, to standover people.  This was not a once off.  It was suggested that the court should view your future prospects as being poor.  As to parity, they submitted that there were, in this case, good reasons to differentiate between you and Baker by way of sentence.  The Crown accepted that there had been some quite limited steps taken by you in the course of the period that had elapsed since this offending in July 2015.  They placed before me some cases spelling out in general terms the seriousness of the crime of kidnap.  For instance DPP v Ramos [2013] VSCA 215, DPP v Saltmarsh [2013] VSCA 290 and Hanna v The Queen [2014] VSCA 187. They argued that there were in truth not too many matters in mitigation here. The Director argued that a prison term was required here, one of a dimension requiring the fixing of a non-parole period.

Background

27I turn now to your background but will do so quite briefly as I have no reason to doubt what I was told by your counsel.  Your family background is set out in some detail in your counsel's written outline when read in conjunction with the very detailed chronology which had been prepared.  It is also referred to in Judge Coish's sentencing remarks of November 2017 as well as in the lengthy report of Mr Crewdson.

28I see no point in restating your background.  Very briefly stated, you were born in Carlton on 19 February 1976.  You are 44 years of age but were 39 at the time of the offending in mid-2015.  You are the oldest of three siblings.  You are estranged from your sister and your brother has some serious mental health issues.  The family lived in Epping but moved to Whittlesea where your mother's family ran a mixed business.  You attended the local high school and also did some work in the shop.  Your family lived in the residence at the back of the shop.  You were bullied at school owing to your weight.  Tragically, your father was killed in a car accident in 1990.  You went on to complete Year 12 in 1994.  You are obviously a bright enough individual.  You chose not to go on to university.  You worked in a hair salon for a number of years as well as in the hospitality industry.  You started using drugs and that coincided with the commencement of the more serious offending.  There was a bit of a saga, at least before the courts, in relation to a serious criminal incident occurring in 2003.  You were convicted of a large number of offences including blackmail, false imprisonment and kidnap, received a 7 and a half year prison term, appealed successfully against conviction and eventually, after a number of false starts, were convicted of false imprisonment at the retrial and sentenced to
15 months' imprisonment in 2010. The factual setting is discussed in the sentencing reasons of Judge Duggan which were provided to me as well as in an appeal from that sentence. See [2011] VSCA 18.

29In the midst of all of that, you continued using drugs.  I am told you reconnected with your family in 2012 or 2013 and were involved in a family business in
South Morang.  You were back on the rails.  You broke up with a long term girlfriend in 2015 and fell out with some family members who queried your work ethic and you stopped work and resumed drug use.  You were well and truly back off the rails.

30This led in to the period covered by the offending I am dealing which was the same period where you committed the offence dealt with by Judge Coish.

31As I said a moment ago, I am not going to set out the full detail of the chronology.  It is very much a tangled one with you going in and out of custody until you wound up there for good on 4 September 2018.  There were a variety of sentences and part of the chronology is your poor decision not to appear at court on three occasions in relation to this matter, once you had been identified and charged.

32I am told that you have reconnected with your family.  Your mother's very sad letter confirms you are on a last chance.  Mr Soldini gave evidence before me.  There is also a reference from him.  He and his father and brother are prepared to employ you.  He has known you since Grade 4 or 5.  You were very close friends.  There have been falling outs along the way connected to his strong disapproval of the way you were living your life from time to time.  He has seen you as he puts it, 'run off the rails' more than once.  He saw improvements in the period in 2012 and then later sharp declines.  He has declined to visit you in prison and you have been there since September 2018 but he has made himself available to speak to you on the phone and does so often.  He says that over the last 8 to 12 months, there has been a large shift in your attitude.  You seem to be more accepting of the bad choices you have made and prepared to take responsibility for them.  That may be so but of course this case only settled in February of this year as against a trial fixed in April.  You have some remorse for the impact of your lifestyle upon your brother and mother.  He says he spoke to you very frankly at the outset when he reconnected with you and told you some very unpleasant home truths about the way you had wasted your life and the need to change your ways.  He has a sense that you are ready for change.  Whether you will fail as you have in the past he really cannot know.  You are prepared to at least verbally commit to some real changes in your life.  If employed, he would insist on your being drug tested.  You are lucky to have his support.

33As I have said, you have been continuously in custody since September 2018 of which 480 days or close to 16 months is referrable to these matters.

34Drugs have obviously been a massive problem for at least 15 years.  Probably longer.  That is the theme in the letter from your mother and Mr Soldini.  Your criminal history suggests that is so.  You are just a different person altogether when affected by drugs.  Most people are altered by drugs when they take them but very fortunately, most people do not go out and commit serious violent offences.

35You have a very lengthy criminal history.  There is no point me working my way chapter and verse through the many court appearances over the last 24 years.  These reasons will be quite long enough already.

36There are crimes of violence.  So the intentionally causing injury and false imprisonment I have already spoken of.  You have many driving, dishonesty, drug and firearms offences and have breached many court orders.  You have received many terms of imprisonment including for offences committed subsequently.  You were on a suspended sentence at the time you committed these serious offences. I want to make one thing very clear to you.  You do not fall to be sentenced a second time for any of those past offences.  You have received and served those sentences.  However, your criminal history and lack of response to court orders is relevant to my task.  I have to make judgements as to your risk of reoffence, your prospects of rehabilitation and the need to deter you and to protect the community from you.

37So whilst your prior history does not in any way aggravate the objective gravity of the actual offences I am dealing with, it is relevant to these various judgements I am required to make.  You have not taken the chances offered by the courts over the years.  Your counsel frankly concedes that is so.  Court orders have not deterred you.  The community corrections order imposed in March 2016 did not deter you.  Prison has not to this point deterred you.  I must try again to dissuade you from offending.  The need for specific deterrence and community protection is very clear here.  That is not to say I ignore your efforts over the last couple of years.  There is at least that glimmer of hope provided by the letters and reports from those who have had dealings with you since you went into custody.  I will say more about that shortly.

38You are currently held at Port Phillip Prison.  You have had a job whilst in custody.  You are a billet.  I am told you have been drug free.  There are some clean drug screens to support that submission.  You have been offence free whilst in custody.

39I will discuss later in these reasons the impact upon prisoners of the response to the COVID-19 global pandemic and the contention that it increases your prison burden.

40Let me turn now though to consider the matters raised on your behalf.

Guilty plea

41I turn firstly to your plea of guilty.  You have pleaded guilty.  Of course, you had some other charges above your head in relation to this incident and in that setting, the matter went to a contested committal in January 2019.  The victim was cross-examined.  So too Mr Grieve and the informant.

42You were committed to this court and your counsel at the time told the court that you were challenging the correctness of the identification.  Well of course ultimately that changed.

43I must reward you for your guilty plea.  I must also have regard to the stage at which the plea was entered.  Mr Dunn was not suggesting it was an early plea.  The trial was listed in April 2020.  The case settled in February 2020.  You have facilitated the course of justice and that is what is important.  I do not want to get too caught up on the stage of the plea.  You have ultimately taken responsibility for your offending.  By doing that, witnesses have been spared the experience of coming to this court.  Giving evidence before a jury can be a stressful event for a victim of offences such as these.  That was averted.  The community has been saved the time, cost and effort associated with a trial up in this court.  I take those matters into account in mitigation.

Remorse

44Your counsel argues that I should find that you have some remorse.  He was not suggesting it was fulsome and all he could really point to was your guilty plea and some of Mr Soldini's evidence.  A guilty plea is often but not always indicative of some remorse.  You made a no comment interview as was your right.  Mr Soldini mentioned remorse but that was more directed at your feelings of remorse in relation to letting your mother and brother down.  Remorse for the crime itself is a different thing.  There is not much evidence of remorse here.  You were after all denying presence until relatively recently.  I am prepared though to treat your plea as evidencing some very limited remorse.

Rehabilitation

45Your counsel argued that you had some prospects of rehabilitation.  He could put it no higher than that.  It was a sensibly pitched submission.  There is no point applying unrealistic adjectives in the setting of this case given your age and criminal history.  You were not some silly teenager committing some youthful crime for the first time.  You were a mature man with a very lengthy criminal record.  You have breached many of the non-custodial sentences imposed in the past.  Prison has not deterred you.  You have a lengthy drug history which must raise serious question marks as to your future prospects.  I also have the serious nature of the offending I am dealing with.  You were behaving like a thug in July 2015.  You had done so before this crime, in 2003, and again after, in August 2015 though not for some years now which is at least something.  I have read the sentencing remarks of Judge Duggan as well as the Court of Appeal decision from 2011.  Also the sentencing remarks of Judge Coish.  These give some sense of some of your past offending and how serious it has been.  The offending I am dealing with is not a once off.

46The sentence I will pass will have some role in deterring you in the future.  Past sentences though evidently have not deterred you.  You have family support, presently.  I say presently, as there has been a pattern of disconnecting and then reconnecting from your family and perhaps that is not that unusual for drug users who are notorious for burning many bridges with family and friends.  Your mother speaks of the way your conduct has rebounded on the family.  She has been at her wits end.  Your conduct has caused her grief and financial disaster and she says you are starting to acknowledge that.  She at one point had to take out an intervention order against you and throw you out of her house.  She speaks of all the bad decisions you have made and the instability in your life over many years.  She has seen a change.  You are making the right noises in discussions with her.  You have vowed to stop taking drugs and to lead a different life.  She is prepared to give you one final chance and still hopes, as any mother might, that you may become a contributing member of society.  It is hardly surprising that she should hope that you will change your ways.  Now she has said similar things in the past when called on your behalf.  Judge Cohen sentenced you after the first trial verdict way back in 2006 and your mother gave evidence and described the changes she had observed.  References and reports of people who had dealt with you in prison were placed before the judge who spoke of your genuine efforts at change and the court was urged to find that you were a different person to the person who had offended in 2003.  Now ultimately the verdict was set aside and so I pay no regard to the statement of the facts of the offending in her reasons.  Ultimately you were convicted only on the false imprisonment.  The factual basis of the false imprisonment can be found in Judge Duggan's reasons from the 2010 retrial sentencing remarks.  However it is clear enough that this account of your transformation was placed before a court in 2006.  I am not by the way suggesting that she was doing anything other than telling the truth on both occasions but of course she was let down on that earlier occasion by you.

47That undoubtedly is so but the fact that you have reconnected with your family and enjoy your mother's support presently can only be viewed as a positive factor.

48I have already mentioned Mr Soldini's letter and evidence.  It would appear that you have had some ability to reflect on your poor life choices.

49I will not write you off.  People can always change.  There is some positive material placed before me from the various people who have been engaged in treatment and counselling.  I am not going to mention it all in any detail.  So the email from Paul Itter.  He speaks of the changes he has seen over more than two years.  There is the letter from Peter Wroblewski as to your efforts with Narcotics Anonymous.  I note that started only in January of this year.  He thinks you are serious about abstinence based recovery.  There is the letter from Peter McAlpine a forensic caseworker at Restart.  They have created a transition plan to prepare for your ultimate release.  You are obviously thinking of the things you need to change and the structure you require to have some hope of offence free life.  That is a positive as well.  There are the letters from Mr Brasier and Ms Maxwell and the program completion documents.  There are the clean drug screens.  There are the other attendance certificates as well as the certificates of participation.  There are the reports of Dr King and Mr Crewdson.  There was very little reliance on those lengthy reports.  Mr Crewdson was relied upon as demonstrating the absence of any psychiatric illness and the need for treatment in relation to drug issues.  So there is no mental illness standing in the way of rehabilitation.

50I believe there is a glimmer of hope provided by that various material touching upon your current position in prison and the suggestion of some real desire for change.

51I suppose it is possible that it is all just window dressing for your plea or for the earlier attempts to get bail but I doubt if it is.  By the way there would be nothing wrong or surprising about someone trying to put their best foot forward in the lead up to a court case.

52I note however that Judge Coish was told similar things at the plea for the August 2015 intentionally causing injury offence.  That plea was conducted in November 2017.  The judge refers in his reasons to evidence from Mr Itter and the big change Mr Itter had seen in your attitude to that point.  Mr Itter spoke of your aims to reconcile with your family and remain drug free and that judge spoke of the clean urine screens and the constructive use of your time in custody.  That plea took place on 30 November 2017, 11 years after Judge Cohen had been told of your 2006 transformation.  You were released a few months later in February 2018 and continued to offend and wound up back in custody where Mr Itter continued to see you.

53I am certainly not satisfied that your efforts are just window dressing for the plea.  It would be pretty determined window dressing over a sizeable enough period.  The fact that you have previously done well in custody and vowed to change your life and have then failed to do so in any lasting fashion probably just demonstrates the difficulty in making lasting change even when motivated to do so.

54It is just possible you may be reaching an age where you recognise the need for change.  Maybe you are ready.  If not now, when Mr El Azar?  When?  You are no longer a young man.  You have seen years if not decades of your life just slip away with nothing to show for it.  It would be strange indeed for you to want to continue living the life you have been living.  Drugs, crime, prison and grief to your mother.  That sums up much of the last five years of your life.  Maybe you do wish to change.  Your counsel says you have good intentions.  You probably do.  Good intentions are easy to have.  Committing by word is easy enough.  Anyone can do that.  You have in the past on numerous occasions and not followed through.  No doubt you meant what you said.  But actions are far harder.  Actions speak much louder than words.  The test will come as it always has, upon your release from prison and you have failed that test time and time again.  Including having been placed on the community corrections order in March 2016 and even after being released in February 2018 from the prison sentence imposed by Judge Coish.  I have to be realistic.  I hope that you can succeed in the future.  I hope that you can turn your life around. For your sake, for your mother's sake and even for the communities sake.  It is not too late.  But literally, you will need to turn your life around.  If you continue using drugs, it will be more of the same for you.  Offending and prison.  If you can abstain, well maybe there is still some real hope for you.  As I sit here now though, it is hard not to be guarded.  I am prepared to find that you have some prospects of rehabilitation.  You also have a decent enough risk of reoffending in the future.  I do not need a risk assessment to make that finding.  It is obvious.  Should you remain drug free then of course your prospects will further improve. If you revert to drug use, your prospects of rehabilitation will plummet.  You would have virtually none.

Delay

55Your counsel to some extent relies upon delay.  Not inordinate delay brought about by some unduly leisurely police or prosecutorial approach worthy of disapproval or sanction by the court.  Mr Dunn points no fingers and makes no complaint as to the fact of delay.  The fact is you were not identified at the time of the crime.  You were completely unknown to the victim.  Your DNA was obtained on a later occasion and then there was that later match.  Then you were identified by the victim in a photo folder identification process.  Then there was the tortured chronology I have briefly described including the number of occasions where you chose not to attend court.  Then you exercised your undoubted right to run a committal and then to run the matter to trial and take issue with your alleged presence at the crime scene.  The Court of Appeal has said often enough that whilst there are some exceptions, generally it is not particularly profitable conducting some audit into the reasons for delay.  It is not particularly important.  Your counsel does not suggest I should do that.  Nor does he point to the impact of having the matter over your head or rely on that aspect of delay occasioning a form of separate punishment.  Rather, he points to the steps you have taken in the course of the delay.  The steps you have taken as disclosed in the written materials I have previously mentioned.  It is not all positive of course.  I am dealing with you for offending in July 2015.  Then you continued to offend.  In August 2015 and beyond, right up to September 2018.  So you offended even after being placed onto a community corrections order in March 2016, even after being sentenced by Judge Coish in August 2017 and released in February 2018.  You can be contrasted with someone who has offended and then stayed totally out of trouble from the commission date of the offence.  That would be a better position to be in but that is not what I am dealing with.  Your offending only stopped when you went into custody in September 2018.

56I have the efforts you have made in the period since September 2018.  Mr Dunn argues that I should take those efforts into account and of course he is right.  I must and I do.  I have already mentioned this when dealing with your prospects of rehabilitation. I am after all sentencing the man who is before the court now, for the offences committed some years ago.  I cannot just ignore such efforts as you have made and treat you as though you are the exact same man who existed five years ago.  Your counsel for good reason did not make a separate submission as to the difficulties of having the matter over your head for such a time but I do take the view that it cannot have been easy having this matter over your head.  It is the last offending from a different phase of your life, hopefully a phase you may be able to leave behind you.  I take into account the delay in the way your counsel asked me to.

COVID-19

57Your counsel points to the impact of the COVID-19 virus upon your time in custody.  I accept that the COVID-19 virus and the response to it by those running the prisons will increase your prison burden.  It is impossible to know precisely how it will impact upon you in the future. There are some lockdowns but they do not exist across all prisons so I really cannot work on the assumption that they will apply to you in the future.  Visits have already been suspended and so have some courses and programs.  I cannot know how long those things will persist. I am not here to guess.  According to a Corrections publication which I disclosed to the parties a short time ago, any prisoner who is suffering disruption or deprivation due to the prison response to the COVID-19 virus will automatically be considered for emergency management days.  It is not exactly clear what that will mean for you and the extent of any relief will be on a case by case basis.  It will not be attracted merely by the cessation of personal visits.  Though there have been some significant relaxation of stay at home directives in the community, it is still very uncertain as to what lies ahead and that has been made plain by a bit of a setback in the last handful of days where infections have picked up.  It is reasonable for me to conclude that there are no prospects in the short term of any in-person visits for any prisoner.  That undoubtedly makes prison life tougher and has since that measure came into effect some months ago.  I accept that there is an increased custodial burden in your case for the reasons advanced by your counsel.  I take that into account in your favour.

Reports of Dr King and Michael Crewdson

58Your counsel's written submission in no way described the nature of the reliance on the two expert reports placed before me.  Only one was even mentioned and with nothing other than the bare mention of Mr Crewdson's report.  Because the matter had been listed for bail application on a number of occasions and much material had been filed on the iManage system, I had my associate correspond with your solicitors so that I could understand what, if any of the documents previously filed, were actually being relied upon on the plea.  I was not sure for instance if Mr Crewdson's or Dr King's reports were being relied upon.  Those reports were not commissioned for the plea at all.  As I said, Dr King's report was not even mentioned in the plea written outline.  Mr Crewdson's report was, but with no mention at all of how it was relied upon.  Your solicitor emailed back to my associate saying that those two reports provided relevant background and would form part of the court's assessment as to your prospects of rehabilitation but that they were not relied upon in any Verdins fashion.  I again had my associate email this time to make it clear that this was not an adequate response and that I would require counsel on the plea to identify the portions of the reports actually relied upon.  I do not normally have to engage in this form of correspondence in advance of a plea.  I should not need to.  The reason I did here was that Mr Crewdson's report ran to 36 pages and was in parts incomprehensible.  Dr King's report was at least shorter, coming in at 15 pages but virtually entirely incomprehensible.  I made it clear that I needed assistance to understand the significance of any of this material.

59On the plea Mr Dunn was commendably brief on this topic.  He confirmed that the reports were not relied upon in any Verdins fashion.  Dr King's report was relied upon only as demonstrating that you had offended whilst drug affected and needed treatment.  Mr Crewdson's report was relied upon only as setting out some family background, the drug related nature of your offending, the need for treatment and the absence of any psychiatric illness.  It is for those reasons that I descend no further into those reports.  I am content then to leave Dr King's opinion as to the worth of the Rorschach inkblot test for some other occasion.

60I was not greatly assisted by either of these reports.

Parity

61You will recall that there was some discussion about the principle of parity of sentence in the course of the plea.  In the broadest sense, parity is the notion that like co-offenders will be dealt with in a like manner.

62Ordinarily then, if there are no points of distinction between the actual offenders or their roles or their backgrounds, then the same or, at least, very similar sentences should be imposed.  I should state that this is something of a simplification of the principle but it suffices for present purposes.  It is a principle which makes good sense.  The hope is, that by applying this principle, courts will remove or eliminate any justifiable sense of grievance as between
co-offenders.  This principle of parity is very easy to state in the hypothetical but is a much more difficult principle to deal with when passing sentence as a judge in a real case.  That is because there is almost never such a thing as a like offender or like backgrounds.  There are far more commonly differences in the individual features of the offenders or in their role or, as is most often the position, in both.

63It is harder still when different judges are at different times called upon to sentence co-offenders as is happening here.  Judge Montgomery passed sentence upon Baker in 2016.  That judge has now retired.  I am required to inform myself of the sentence already imposed.  I did not observe the evidence of Baker's mother called on the plea nor do I have a transcript of either that evidence or the plea itself.  Nor do I have the defence exhibits.  I have the charges and summary and Judge Montgomery's reasons for sentence.  They are very brief reasons but give me a sense of the findings that he made.

64He made judgments as to the weight to give to the various sentencing purposes.  He passed what he regarded as the appropriate sentence upon Baker.  It was a three year community corrections order.  If I might say before going any further, I believe that Baker was extremely fortunate to receive such an outcome.  He was hardly a passive player and was far more involved in the physical assault the subject of the intentionally causing injury charges.  However, he received that merciful outcome and that was no doubt owing to the many matters of mitigation existing in his case.  The principal one being his youth.  He was a youthful first offender.  He was only 20 years of age and had some decent period of residential rehabilitation under his belt. He was still only 20 years of age when dealt with by Judge Montgomery in 2016.  He had pleaded guilty at an early stage, was remorseful and the prosecution was asserting before that judge your greater involvement in the kidnap.

65I cannot ignore that sentence when I come to sentence you.  Parity has a role to play here.  I must explain to you and to others why it is that I am going to pass such a different sentence upon you.  The significant differences must be capable of rational explanation.

66There has to be significant disparity here in Baker's favour to recognise the differing circumstances.  Your counsel concedes as much.  I could probably start with his youth and go no further.  He was a 20 year old.  Not just 20, but 20 and with no criminal history at all.  The principles dealing with youthful offenders as set out in cases such as R v Mills [1998] 4 VR 235 and Azzopardi v The Queen (2011) 35 VR 43 spell out the many reasons why rehabilitation is given such a high premium when dealing with youthful offenders. Even on the limited materials available to me, one can easily see how a judge would find favourable rehabilitative prospects in his case notwithstanding the seriousness of the offending. Also why a judge would be deeply concerned as to the impact of imprisoning a youthful first offender.

67You, on the other hand, were 39 years old and with a very sizeable criminal history including a prior conviction for a nasty false imprisonment.  You had been to prison on many occasions.  So I have differing ages.  Differing criminal histories.  Differing weight to be given for specific deterrence, community protection and punishment.  Far more favourable prospects in his case than yours in terms of rehabilitation.  Whilst his role was important enough and by no means passive and of course he was the contact of the victim, you raised the stakes incredibly.  You suggested the kidnapping.  You used the binding and the pillowcase.  You raised the issue of $5,000 and schooled the victim as to what he should say to his mother.  You were, in my view, the driving force behind this offending escalating as it did.  It was your house the victim was taken to and as I have said, you had demanded the $5,000 sum.  Baker had demanded the repayment of a debt of $500 and received $400.  I raised on the plea Ms Mead's mention in her statement at page 65 of your saying in the course of the attendance at the house that you had spent years in prison and describing Baker as 'your little brother that you were teaching'.  Mr Dunn did not take issue with your having said that but said that the kidnap was a joint crime.  Of course that is true but I have no doubt at all that you were the driving force in relation to the kidnapping.  I am satisfied of that beyond reasonable doubt.

68I started this topic by describing how parity stands for the proposition that like offenders will be dealt with in a like fashion.

69Well, plainly all things are not equal here.  I do not have like offenders.  I have major differences in age, background and experience before the courts.  Major differences in the weight to give to community protection, specific deterrence and punishment.  Major differences in prospects or rehabilitation, stage of plea and existence of remorse.  Even the difference in terms of role with you being the driving force behind the kidnap.

70Here, there are differences everywhere I look.  Most, not all, but most are in his favour.  You must do a good deal worse than Baker and Mr Dunn concedes as much.

71I cannot stop you from holding unjustified grievances.  That is impossible.  All I can do is what I am doing and that is to explain to you and others as best I can the reasons for the differences in sentence.  You would surely see why you have to do a good deal worse by way of sentence than a 20 year old first offender.  If you do not see that, you are not trying too hard.

72None of this is to say that the sentence imposed on Baker is somehow irrelevant to my task.  It is not.  I must take it into account.  I have done my best to apply the principle of parity to my task.  Indeed let me make it plain to you that I am going to pass a sentence less than might otherwise have been the position, owing to the existence of that sentence and my application of this principle.

General remarks

73I turn now to make some general remarks.

74I must pay regard to the maximum sentence and the impact of your crimes.

75I have to consider the nature and gravity of your offending.  Mr Dunn's written outline to an extent glossed over the seriousness of the kidnap.  In fact it scarcely engaged with what you had done.  That is attend in company upon someone's home in the early hours, force someone from one house into a car, bind them, place a hood over their head, terrorise and assault them, hold them for hours at another house and then move them blindfolded into a car, all for money.  There was no debt owed to you at all.  You were just opportunistically using this as an excuse to demand money from an increasingly demoralised, vulnerable, injured and isolated victim.  By the time he was kidnapped he had been badly assaulted by Baker.  He had been monstered and assaulted.  You later inflicted burns to him.  The kidnap was extremely serious conduct by a man with a highly relevant criminal history.  The thefts were serious enough themselves.  So too the intentionally causing injury.  A pretty nasty example by way of mechanism and setting though with minor enough injury.  The injuries caused by Baker were of course far more significant.  The kidnap is not a particularly sophisticated offence. It did not need to be.  Mr Dunn at one point said the offending here made no sense and that you were drug addled.  That was not the nature of the offending at all.  It made enough sense.  You had a vulnerable victim.  Whatever might be said as to your drug addled state, you had your thinking cap on as you provided the ideas for your victim to provide a false account to his mother to prise free the money.  This was you feeding a script to your victim to use to obtain the money that you were demanding.  It was not pleasant, it was not decent but you were thinking it through.

76Sentencing always involves the balancing of a number of purposes or principles.  I have to take into account your prospects of rehabilitation.  I am not too upbeat about your prospects though I recognise there are at least some prospects.  That is the benefit of the delay for you.  I suspect it might have been a different finding had I been dealing with you closer to the offence date.  Bleak is a word that would probably have sprung to mind but does not now owing to the various materials which give me a glimmer of hope.  At least in the last few years you seem to be questioning your past decisions.  You have good intentions.  Whether you can translate them into good actions remains to be seen.  But I find the existence of some prospects of rehabilitation.  Rehabilitation is however but one of a number of sentencing purposes and I believe it must surrender some ground to some of the other purposes of sentencing.

77Punishment is an important sentencing purpose in this case.

78Denunciation is also an important sentencing purpose in this case.  This was serious criminal conduct.

79I must consider the need for specific deterrence.  That is, the need to deter or dissuade you from committing crimes in the future.  That is self-evidently an important purpose.  Time and time again, courts have tried to deter you with no success.  I must try again to deter you.

80Community protection is also important in this case for the same reasons.

81General deterrence relates to the need to send a message to future potential offenders.  It is also an important purpose of sentencing here.  A message must be sent to likeminded people especially for those who might have kidnapping on their minds.  The message must be clear and strong, and must discourage others from doing as you did.  Kidnap is a serious crime indeed.  People must understand that such conduct as yours will not be tolerated and will be dealt with sternly by the courts.

Current sentencing practice

82I pay regard to current sentencing practices.  It is not a single controlling factor.  It is one of the matters a court has to have regard to.  I have looked at the SACSTAT online data.  There is no sentencing snapshot for the crime of kidnap.  The kidnap is plainly the most serious of the offences by far.  The most common prison sentence as disclosed in the online data for the period from 2013 to
June 2018 was three to four years (26.3 per cent).  The next most common sentence was four to five years (21 per cent).  Ten and a half per cent got between two to three years, ten and a half per cent got five to six years and ten and a half per cent received seven to eight years.  Now these are just statistics. They are just numbers and of course they always have great limitations.  They do however show a trend and that trend is of sizeable prison terms in recognition of how serious the offence of kidnap is.

83I have also looked at some of the material held at the Judicial College of Victoria new sentencing manual dealing with kidnap.  Sentences of the Court of Appeal and this court.  I have looked at the cases to which I was referred by the prosecutor.  I mentioned some of them earlier and the citations will be contained within my decision.

84Statistics have inherent limitations as I have said.  They never spell out the features of mitigation or of aggravation.  They never provide detail of the nature of the crime or the personal circumstances of the offender.

85I am not here to sentence you according to what has been the most common or average or median past sentencing outcome.  Those things are just statistical terms.  I am exercising my discretion as a sentencing judge.

86As to the other examples of sentences imposed, well those other sentences imposed on other people for other crimes are of very limited use.  Every crime is different and so too is every offender.  What I must do is sentence you for your crimes.

87Kidnapping is an inherently serious if not extremely serious crime.  It is punishable by a 25 year term of imprisonment.

88I refer to the words of the Priest JA in the case of Hanna where he said the following:

'Offences of kidnapping for ransom which thankfully are rare often attract sentences of imprisonment in the double figures as do those offences of kidnapping which are accompanied by rape or sexual offending.  Total effective sentences of 8 or 9 years imprisonment are not unusual for "payback" offences.  Indeed sentences of imprisonment exceeding seven years to a shade under 10 years are not uncommon generally for kidnapping and associated offending'.

89Kidnap is an inherently serious offence and though not a kidnap for ransom, your offence was no minor example of it at all.  In fact I believe it was a serious example of the crime.

Totality

90Your counsel points to the passage of time since these events and the various periods of imprisonment you have served and asks me to take into account the combined periods and the principle of totality.  I do.

91I have taken a last look at the effect of the sentences I am imposing to ensure that it is commensurate with your overall criminality and not crushing upon you.  Your criminality was high.  I do pay regard to the fact that you have served these other sentences of imprisonment.  The fact is though, of course you have served them for unrelated crimes.  Had one judge been dealing with you for all these matters at once you would have necessarily received a very sizeable sentence.  I suppose there might have been some moderation effected by ordering concurrency and that is now lost to you.

92But the fact is the crimes that I am dealing with were serious separate criminal conduct.

93I must pass appropriate sentences upon you for these crimes.  These other sentences were imposed as you had chosen to commit other crimes which were serious enough to warrant prison terms.  That only stopped when you were taken into custody in September 2018.

94You have undoubtedly though spent a sizeable period of the last five years in custody including the period continuously from 4 September 2018 to now.  That is the person I am sentencing.  That period may well be responsible also for bringing about some change in your outlook and some improvement in your prospects of rehabilitation into the future.

95So I do take into account the principle of totality in the way argued by your counsel.

96Prison is always a disposition of last resort.  Your counsel Mr Dunn conceded the inevitability of a prison sentence here but argued that one in combination with a community corrections order would be open in the circumstances of this case.  He argued that you could be released onto a suitably conditioned community corrections order at some time down the track.  He was not suggesting you could be released immediately.  You had already served close to 16 months.  He reminded me of Boulton's case.  I need no reminding of that decision but it never stood for the proposition that every offender for every crime must be admitted to a community corrections order.  Some crimes are too serious for a standalone community corrections order or even one in combination with a prison term.

97Whichever way the court headed though, he reminded me that you would at some point be released.  Depending on the sentence imposed, either released on a community corrections order or upon being granted parole, or if not paroled, at the lapse of the head sentence.  Whenever it was you were released, Mr Dunn said you would need support and he pointed to some advantages of a combined type order.  He argued that such an outcome would provide you with structure whilst at the same time punish you and serve to protect the community from you by fostering your rehabilitation.  It could also be for a sizeable period, perhaps longer than the sort of period available for support if you happened to be released on parole.  He also acknowledged though that there were some disadvantages in such an order.  One obvious one is the delay that takes place following on from any breach of such an order.  Unfortunately breaches of community corrections orders come back to this court in a far too leisurely manner which can be contrasted with the steps the Adult Parole Board can take to swiftly return a person to prison and to hence protect the community from someone who is not complying with their conditional release.

98One can always see some advantages in a community corrections order but it is not my job to chart a course to a position with some advantages.  I am not to jump to that end position and then try to find some method to wind up there.  What I have to do is to pass an appropriate sentences.

99If that outcome could adequately reflect or achieve the various sentencing purposes, I would be duty bound to select it owing to the principle of parsimony.  A court confines a person only for so long as in needed to achieve the various sentencing purposes.

100Your offending is way too serious for such an outcome.  A combination order is just not realistic.  Such an outcome would not in my view give anything like the appropriate weight to specific and general deterrence, community protection as well as denunciation and punishment.  It would not achieve the purposes of sentencing.

101Nor is it even open in a practical sense.

102It is as plain as day that the total effective sentence must exceed two years. In those circumstances, I am then required as a matter of law to fix a non-parole period, other than in the handful of very rare circumstances as set out in s.11 of the Sentencing Act 1991, circumstances which plainly do not apply to you.

103So I am bound to fix a non-parole period and that is totally incompatible with placing you onto a community corrections order.

104Finally, you would need to be out and about, ready to commence such an order in the community within 12 months and again that is just not realistic at all in this case.

105A combination type order is simply not open here.

106I will though provide for the possibility of your early release by fixing a non-parole period, as I am required to.  I proceed on the assumption that you will serve every day of the head sentence that I will soon pronounce.  I am not allowed to take into account the possibility of your release on parole.  I must fix a non-parole period.  The Adult Parole Board will make the decision as to whether you can be released.  It has nothing at all to do with me.  They will have the ability to at least consider your early release.  I will arm them with my reasons and the mitigatory materials placed before the court.  Those things might assist your cause.  Your continued good efforts in custody cannot hurt your cause.  Ultimately it will be for the Adult Parole Board though to decide whether you should be released on parole.

Disposal order

107There is a disposal order in this case and it is not opposed.  It relates to the various bits and pieces noted in the schedule to the order.  Application is made pursuant to the provisions of s.78 of the Confiscations Act for the forfeiture to the State of the property referred to in the order.  The application is made pursuant to s.78 of the Confiscations Act.  It is not opposed.  I have signed that order and I have pronounced it in this abbreviated form.  The property referred to in the schedule will be held and dealt with in the manner contemplated by the signed order.

108Yes, all right.  I am sorry I have taken so long to get to this point, Ms El Azar.  Can you stand up please.

Sentence

109On Charge 1, the charge of kidnapping, I convict and sentence you to four and a half years' imprisonment.  That will be the base sentence.

110On Charge 2, the charge of theft, you are convicted and sentenced to
16 months' imprisonment.

111On Charge 3, the charge of intentionally causing injury you are convicted and sentenced to eight months' imprisonment

112On the final charge of theft, Charge 4 you are convicted and sentenced to
nine months' imprisonment.

Cumulation

113I direct then that:

·six months of the sentence imposed on Charge 2; and

·three months of the sentence imposed on each of Charges 3 and 4

are to be served cumulatively upon the base sentence and upon each other.

Total Effective Sentence

114This produces, therefore, a total effective sentence of five and a half years' imprisonment.

Non-parole period

115I fix a period of three and a half years during which you will not be eligible for release on parole.

Section 18 pre-sentence detention

116You have already served 480 days of this sentence by way of pre-sentence detention and that s.18 declaration is to be entered into the records of the court.

Section 6AAA

117I have taken into account your guilty plea.  If you had pleaded not guilty and been found guilty of these offences by a jury, I would have convicted and sentenced you to seven and a half years' imprisonment.  I would have fixed a non-parole period of five and a half years.  That statement is to be entered into the records of the court.

118Just grab a seat for the then for a moment, I will see if there is anything else I need to attend to.  Mr Blake, Mr Barry; any other matters I need to deal with at all?

119MR BARRY:  No, Your Honour.

120MR BLAKE:  No, Your Honour.

121HIS HONOUR:  You followed the structure of that sentence?

122MR BARRY:  Yes, Your Honour.

123HIS HONOUR:  Yes, all right.  You will go down and see your client downstairs, Mr Blake?

124MR BLAKE:  I have seen and yes, I will.  Yes, Your Honour.

125HIS HONOUR:  Yes, all right.  All right, look, that completes the matter then,
Mr El Azar.  Mr Blake will come down and have a chat to you downstairs about the sentence I have just imposed.  So Mr El Azar can be removed, thank you.

126Look, I will sign the formal orders in chambers I think.  Yes, all right.

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